O'Neill and Secretary, Department of Social Services (Social services second review)

[2017] AATA 842

O'Neill and Secretary, Department of Social Services (Social services second review) [2017] AATA 842 (14 June 2017)

Division:GENERAL DIVISION

File Number:           2015/6428

Re:Jeffrey O'Neill

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:14 June 2017

Place:Brisbane

The decision under review is affirmed.

........................[sgd]...............................

Senior Member T. Tavoularis

Catchwords

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – CANCELLATION of Applicant’s pension – whether Applicant had condition(s) that were fully diagnosed, treated and stabilised at time of cancellation – whether Applicant’s impairments could be rated 20 points or more under the Impairment Tables – Conditions included spinal disorder and chronic depression – Applicant did not meet criteria under s 94 – decision to Cancel DSP correct - decision under review affirmed

Legislation
Social Security Act 1991 (Cth), ss 23, 94
Social Security (Administration) Act 1999 (Cth), s 80
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.
Freeman and Secretary, Department of Social Security [1988] FCA 294

Shi v Migration Agents Registration Authority [2008] HCA 31

Secondary Materials

Guide to Social Security Law

REASONS FOR DECISION

Senior Member T. Tavoularis

14 June 2017

INTRODUCTION

1. On 26 June 1997, Mr Jeffrey O’Neill (“the Applicant”) was granted Disability Support Pension (“DSP”).  He is presently aged 53 years of age.  He was originally granted DSP in respect of his major depression condition.

2. On 7 July 2015, Centrelink, on behalf of the Secretary of the Department of Social Services (“the Respondent”) wrote to the Applicant notifying him of the decision to cancel his DSP payments.  Prior to this cancellation, the Applicant provided a medical report from his local medical officer, Dr Wendy Lock, who diagnosed the Applicant’s primary conditions as chronic depression and lower back pain.

1. The balance of the medical (and expert and non-expert) evidence attributable to the Applicant’s primary conditions produced after his DSP was cancelled comprise a number of letters, handwritten submissions and completed questionnaires ranging from August 2015 to October 2015.

   HISTORY OF THE MATTER

2. On 22 June 2015, a Job Capacity Assessor (“JCA”) interviewed the Applicant and then prepared a report dated 7 July 2015. The JCA looked at each of the Applicant’s stated conditions and, for each condition, concluded:

   ·Spinal disorder: was considered fully diagnosed, treated and stabilised.  This condition warranted an allocation of 10 impairment points when assessed against Table 4 - Spinal Function on the basis of some moderate functional impact on activities involving spinal function; and

   ·Psychological/Psychiatric disorder: was considered fully diagnosed, treated and stabilised. This condition warranted  an allocation of 5 impairment points due to the mild functional impact from this condition when assessed against Table 5 - Mental Health Function

3. As mentioned above, the Applicant was notified of the Respondent’s decision to cancel his DSP under cover of its letter dated 7 July 2015.  This decision to cancel was  based on the JCA’s assessment that the Applicant’s asserted conditions no longer attracted at least 20 impairment points.

4. An Authorized Review Officer (“ARO”),  via a decision dated 22 July 2015, affirmed the finding of the JCA report and herself made the following findings of fact:

   “Findings of Fact
   After careful consideration of the evidence, I have made these key findings:

   ·You have been receiving Disability Support Pension since 26 June 1997 for the following permanent condition:   psychological disorder.

   ·Following your medical review, a decision was made on 7 July 2015 that you were no longer qualified for Disability Support Pension.

   ·Your payment has been cancelled from 7 July 2015 as there has been a change in the assessment of your level of impairment.

   ·According to the latest medical evidence you have the following permanent conditions:   psychological disorder and musculo-skeletal disorder.

   ·Your total impairment rating is 15 points.

   ·You do not have a severe impairment.

   ·You do not have an impairment rating of 20 points or more.” [1]

   [1] See Exhibit 3, T Documents:  at T20, p 163.

5. On 29 July 2016, the Applicant applied for review of the ARO decision to the Social Services and Child Support Division of this Tribunal (“AAT1”). In support of his application, the Applicant provided:

   (a)a letter from Dr Lock to Dr Derek Johns (psychiatrist) dated 5 August 2015;

   (b)handwritten notes of Dr Lock dated 5 August 2015;

   (c)a questionnaire completed by Ms Ariane Minc (counsellor) dated 21 August 2015;

   (d)a questionnaire completed by Dr Derek Johns dated 17 September 2015; and

   (e)written submissions dated 23 October 2015.

6. By decision dated 24 November 2015, the AAT1 affirmed the decision to cancel the Applicant’s DSP primarily on the basis of a failure to reach 20 impairment points. The AAT1 review agreed with the JCA report and the findings of the ARO on allocation impairment points, both as to identified conditions and quantum.  That is, 10 impairment points for a moderate impairment to his spinal function; and 5 impairment points for a mild impairment to his mental health function.

   9.The present application for second review by this Tribunal was filed on
   7 December 2015.

   THE LEGISLATIVE FRAMEWORK

   10.Section 80 of the Social Security (Administration) Act 1999 (“the Administration Act”) gives the Secretary power to cancel a person’s social security payment if it is satisfied that the recipient no longer qualifies to receive it. Section 23 of the Social Security Act 1991 (Cth) (“the Act”) includes DSP as a social security payment.

   11.Section 94 of the Act prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

   12.The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”), a legislative instrument made under the Act.[2] The Tables are function, rather than diagnostic, based and describe functional activities, abilities, symptoms and limitations.  They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[3] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[4]

   [2] See s 26(1) of the Act.

   [3] See s 5(2) of the Determination.

   [4] See s 6(1) of the Determination.

13.Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[5] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[6]

[5] See s 6(3) of the Determination.

[6] See s 6(4) of the Determination.

14.In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered:  whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[7]

[7] See s 6(5) of the Determination.

15.A condition is “fully stabilised” if:

a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

b)the person has not undertaken reasonable treatment for the condition and:

i.significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

ii.there is a medical or other compelling reason for the person not to undertake reasonable treatment.[8]

[8] See s 6(6) of the Determination.

16.“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[9]

[9] See s 6(7) of the Determination.

17.An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings.  If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.  A rating cannot be assigned in excess of the maximum rating specified in each Table.[10]

[10] See s 11(1) of the Determination.

18.In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied.

19.The Tribunal has to assess the Applicant’s impairment and incapacity for work as at the date the decision to cancel his DSP was made, that is on 7 July 2015 (“the date of cancellation”). That finding accords with the decision in Freeman and Secretary, Department of Social Security [1988] FCA 294, which was referred to with approval in Shi v Migration Agents Registration Authority [2008] HCA 31. It is necessary for the Tribunal:

“…. to limit its consideration to the circumstances existing at the time the decision to cancel was made.  The Tribunal [is] entitled to take into account all the facts placed before it, but the issue [is] whether the decision it  [is] reviewing, to cancel the pension, was the correct or preferable decision when it was made.” [11]

[11] Shi v Migration Agents Registration Authority [2008] HCA 31 at [144] (Kiefel J).

20.The Tribunal may have regard to evidence that came into existence after the cancellation date, to the extent that such evidence may be relevant to the application before the Tribunal.

ISSUES FOR THE TRIBUNAL

1. Based on the amount of medical evidence that has been provided during the life of the claim there is no doubt the Applicant suffers from medical conditions. The Respondent conceded that the Applicant has physical, intellectual or psychiatric impairments and thus the requirement under s 94(1)(a) of the Act is satisfied.[12]

   [12] Exhibit 2: Respondent’s Statement of Facts and Contentions (“SFIC”) at [34].

22.The remaining issues for me to consider are therefore:

a)    Whether, at the relevant time, the Applicant’s impairments attracted 20 impairment points or more under the relevant Impairment Tables; and

b)    If so, whether the Applicant had a continuing inability to work.

CONSIDERATION

Did Mr O’Neill’s impairments attract 20 points under the Impairment Tables?

1. I propose to deal with this issue by reference to the Applicant’s various medical conditions.

   Spinal Disorder

2. The Respondent accepts that at the date of cancellation, the Applicant had an impairment for the purpose of s 94(1)(a) of the Act. The Respondent also accepts that the Applicant’s spinal disorder was fully diagnosed, treated and stabilised at the date of cancellation and that it was long-standing and anticipated to deteriorate.[13]

25.The parties agree that the appropriate Impairment Table to be applied to an assessment of impairment points for this injury is Table 4 – Spinal Function.

26.The understanding I took from the hearing is that the parties agree the Applicant’s spinal symptoms constitute a moderate functional impact on his activities involving spinal function. On that basis, I will assume for the purposes of these reasons: (1) an impairment rating of 10 points is to be allocated to this impairment and (2) no further discussion of this impairment and/or any rating is required.  For the record, I can concur with the agreed position of the parties.  I also note the absence of any medical evidence in either the written or oral evidence before me to warrant a finding that the Applicant’s spine condition is a severe impairment and could attract a rating of 20 points or more.  I therefore find the Applicant’s spinal symptoms do not constitute a severe impairment.

Depression

[13] See Exhibit 2, Respondent’s SFIC, at [35].

1. The parties agree that the appropriate Impairment Table to be applied for an assessment of impairment points for the Applicant’s chronic depression condition is Table 5 - Mental Health Function.

   28.There is also agreement that the diagnosis of the Applicant’s mental health condition was made by an appropriately qualified medical practitioner for the purpose of Table 5 and that such diagnosis remains applicable at the date of cancellation. [14]

   [14] See Exhibit 2, Respondent’s SFIC at [39 - 41].

   Is the mental health condition fully diagnosed, treated and stabilised?

   29.There seems a dearth of evidence that the Applicant was undertaking any treatment for his mental health symptoms at the end of 2014. This is initially of concern because it runs contrary to earlier medical opinion that the Applicant’s future treatment was to include anti-depressant medication and ongoing counselling.[15] There was additional medical opinion that the medication had been of limited value in the past and that the Applicant was better served by ongoing psychological support and counselling.[16]

   [15] See Exhibit 3, T Documents:  at T9, p 87 and T13, p 115.

   [16] See Exhibit 3, T Documents:  at T19, p 155.

   30.It emerged from the evidence of both Ms Minc and the Applicant that management and control of the Applicant’s psychological symptoms usually occurs in response to exacerbations of his symptoms, usually as a result of external stressors.  For example, the Applicant nominated stressors in the form of:

   a)     the death of his father in November 2014;

   b)     the death of his nephew in December 2014;

   c)     the deterioration in the relationship with and lack of support from his other siblings;[17] and

   d)     Centrelink reviewing his eligibility for DSP.

   [17] Exhibit 5: Statement of Ariane Minc dated 28 June 2016 at [3].

   31.To my mind, the evidence clearly supports the Respondent’s contention that the Applicant benefits from psychological support and counselling administered in response to exacerbations in his mental health condition. [18]

   [18] Exhibit 2: Respondent’s SFIC, p 6 at [45].

   32.For the purposes of these reasons, I agree with both the Respondent’s contention[19] and the findings of the AAT1 review to the effect that this Applicant’s mental health condition is “chronically unstable and fluctuating and requiring increased treatment from time to time”.     On this basis (and for the purposes of these reasons) I am of the view that the Applicant’s mental health condition could be considered fully treated and stabilised at the date of cancellation.

   [19] Ibid at [46].

   What is the medical evidence?  Contentions of the Respondent

   33.The Respondent contended that at the time of cancellation the Applicant’s depression symptoms constituted a mild functional impact on his activities involving mental health function.  On that basis says the Respondent, an impairment rating of 5 points is warranted. The Respondent’s contention is primarily based on:

   a)    a Job Capacity Assessment conducted on 28 June 2007;

   b)    a further Job Capacity Assessment conducted on 24 August 2009;

   c)    a further Job Capacity Assessment conducted on 7 July 2015; and

   d)    a decision of an Authorised Review Officer on 22 July 2015.

   34.The first of the JCA reporters (28 June 2007) thought the Applicant’s low mood, fatigue and motivation impacted on his ability to interact with others.  This JCA reporter notes the Applicant was then relying on support and assistance from a friend to undertake cleaning and shopping tasks.[20] I note that on this occasion the JCA rated this condition as severe and assigned 20 points.   

   [20] See Exhibit 3, T Documents: at T10, pp 94 & 96.

35.The second JCA reporter (24 August 2009) found that the Applicant’s depression manifested in depressed moods, motivational difficulty, concentration and memory impairment and fatigue. The Applicant also reported to the JCA that he was involved in the discharge of “significant caring duties with mother and father” at that time.[21] I further note that on this occasion the JCA rated this condition as moderate and assigned 10 points.

[21] See Exhibit 3, T Documents: at T14, pp 122 – 123.

36.In the third JCA report (7 July 2015), the Applicant was assessed on a face to face basis with two assessors, who were duly qualified in the areas of physiotherapy and psychology respectively. In reaching a recommended impairment rating of 5 points,  the JCA reporters made reference to the descriptors for mild functional impact on a person’s activities involving mental health function and concluded as follows (adopting the “mild functional impact” descriptors in Table 5). This JCA reporter found the Applicant had mild difficulties with most of the following factors (a) – (f):

a)     self-care and independent living: the JCA reporters thought there was no difficulty with the functional impact on this activity involving the Applicant’s mental health function because it was noted that the Applicant lives alone and independently and that he is otherwise able to manage his self-care needs without support;

b)     social/recreational activities and travel:  the JCA reporters thought there was only mild functional impact on this function because the Applicant said he had minimal social and recreational activities, that he does contribute to a poultry show twice a year but that he otherwise has “some difficulty” in travelling alone to unfamiliar areas and that he prefers to have someone with him.  The JCA reporters also noted the finding of “demotivation”  of the Applicant’s local medical officer, Dr Lock,  in her report of 22 January 2015;

c)     interpersonal relationships:  the JCA reporters observed a mild difficulty, noting the Applicant’s feelings of being socially isolated but that he otherwise interacts with a couple of close associates including one who helps him with his cleaning business. The Applicant told the JCA that his daughter visits him on a weekly basis and that, in general, he can associate with others without conflict. The JCA reporters again referred to the report of Dr Lock of 22 January 2015 and made reference to Dr Lock’s finding of “demotivation”;

d)     concentration and task completion:  the JCA reporters noted “mild to moderate difficulty” with concentration and task completion. The Applicant told the JCA reporter that he “sometimes” has difficulty with driving due to reduced concentration.  The JCA also noted that the Applicant’s local medical officer (Dr Lock) recorded symptoms of fatigue and sleep disorder in her report dated 22 January 2015;

e)     behaviour, planning and decision-making:  the JCA reporters observed a mild difficulty, noting the Applicant had been operating a commercial cleaning business over the last 5 years. It was also noted that the Applicant is able to plan and complete his regular shopping and that he provided some domestic personal assistance for his mother who lives alone. The JCA reporters noted the Applicant’s self-reporting that he was suffering from acute exacerbations of depression at times.  Again, the JCA reporters referred to Dr Lock’s finding of “demotivation” in her report of 22 January 2015;

f)     working/training capacity:  the JCA reporters noted there was no difficulty with the Applicant’s work/training capacity.  It was noted that the Applicant has been operating a commercial cleaning business for over the last five years averaging 20 hours work per week in that business. It was further noted that he selects his duties and hours and often requires assistance from another person.  The Applicant also told the JCA reporters that prior to this, he had also worked as a salesman and a labourer.

37.In a telephone discussion with the ARO on 22 July 2015, it was noted that the Applicant said that he “…lives alone and manages his own self-care needs without support.   He indicated that he has some difficulty with social activities and interpersonal relationships.  He stated that he sees his daughter weekly and family assists him with his cleaning business.  He reported that he did not see his siblings because they don’t understand him, but there are no tense relationships. [He] reported some difficulties with concentration but stated he watches TV for half an hour at a time. [He] has mild difficulty with planning.” [22]On this basis, the Applicant’s mental health condition warranted a rating of 5 points under Table 5 for mental health function.  The ARO did not consider that the Applicant’s mental health condition met the criteria for severe functional impact.

[22] See Exhibit 3, T Documents:  at T32, p 207.

The medical evidence:  contentions of the Applicant

38.Ms Ariane Minc is employed at the Lismore Sexual Health Service. She holds qualifications (an Honours degree) in social work. In her report completed for Basic Rights Queensland on 31 August 2015, Ms Minc noted the Applicant’s commercial cleaning contract work at approximately 14.5 hours per week and that such work involved 3 people working together.  Ms Minc also made reference to a family member assisting the Applicant with the drive to and from work at times when he wasn’t “feeling clear enough in the head” to do that driving function.  As well, Ms Minc noted the Applicant telling her of his “deep depressive moods at least 3 times a year which can last for weeks or months”. As a postscript, Ms Minc noted that the Applicant’s “pain (sitting/standing) that is visible exacerbates his mental health”.[23]

[23] See Exhibit 3, T Documents: at T25, pp 184 and 185.

39.In her supplementary report, delivered by way of a witness statement made on 28 June 2016, Ms Minc opined that:

“9.Prior to the Administrative Appeals Tribunal’s (Social Services & Child Support Division) [AATA 1] hearing in September 2015, I went through the Mental Health function table (Table 5 of the Impairment Table) with Jeffrey and believe that he should be assigned 20 Impairment points.” [24]

[24] See Exhibit 7 or 5(a), p 3.

40.In this supplementary report, Ms Minc further opined that:

“10.   I have continued to see Jeffrey on a regular monthly basis since the AAT 1 decision to affirm the cancellation decision.  My case notes for January 2016 note that Jeffrey was feeling very unwell physically with chest pains.   A DASS 21 indicated severe depression and anxiety and mild stress.   In April 2016 Jeffrey reported that he had “cloudy days” when his head is in a fog which occurs for 3 to 4 days each week.”[25]

[25] Ibid.

41.In his report prepared for Basic Rights Queensland on 17 September 2015, Dr Johns opined that the Applicant had “extreme” functional impairment in respect of every criteria in Table 5 as it related to functional impairment except for concentration and task completion which he assessed as “severe”. [26]

[26] Exhibit 3, T Documents:  T24, pp 174 - 182.

42.Mr Patrick Cranitch is a solicitor with Basic Rights Queensland.  On 23 October 2015,
Mr Cranitch forwarded written submissions relating to the determination of this matter at AAT1 level review.[27]  Mr Cranitch considered the 10 point descriptors in Table 5 and submitted the Applicant met most of those descriptor items as follows:

[27] Exhibit 3, T Documents:  T26, pp 186 – 191.

a)the Applicant required some support from family and friends to enable his continued independence;

b)his social interaction was limited to immediate family and close friends and that his travel to New Zealand in 2015 and then to Thailand should be viewed as either infrequent travel or in some other way highly regulated travel because the trip to New Zealand was made in the company of a close friend and the travel to Thailand was undertaken in the company of an Anglican priest and a registered nurse for the purpose of some dental work;

c)the Applicant apparently had extremely limited social contacts unless they were organised for him and that he found it difficult to interact with other people;

d)his concentration and task completion had been impacted because he found it difficult to concentrate on reading a book and that he could read a page at a time but otherwise had no recollection of what he had previously read;

e)his behaviour, planning and decision-making were apparently impacted by regular suicidal ideation, with a wide variety of triggers;

f)in terms of his work/training capacity, Mr Cranitch noted the Applicant’s cleaning business was established 8 – 10 years ago and that he works with family members when he is able and that he can usually perform 14.5 hours of work per week.

43.In the Statement of Facts, Issues and Contentions prepared on behalf of the Applicant for this hearing,[28] Mr Cranitch again considered descriptors (a), (b), (c) and (d) and, for all intents and purposes, reached the same conclusions for those 10 point descriptors as he reached in his submission dated 23 October 2015.[29]

[28] See Exhibit 1.

[29] See Exhibit 1, Applicant’s SFIC, at [39].

44.Ms Bonnie Tasker has known the Applicant for approximately 40 years. She provided a witness statement made on 26 June 2016. In her capacity as a lay witness, she observed in her witness statement that: [30]

[30]  See Exhibit 7 & 5(b).

·“I am aware of the problems that Jeff [the Applicant]  has experienced with his back and depression over the years”;

·“I visit Jeff [the Applicant] at least once per week.  During my visits, we normally have a cup of tea or coffee and occasionally, we share food that I have bought [sic] with me”;

·“The visits are… to assist Jeff [the Applicant] with his depression and… with his social skills and interaction with others”;

·“Jeff [the Applicant]  needs these visits [because]… when his depression is particularly bad, Jeff  [the Applicant] ‘needs a rev’  and I provide that  by telling him in a tactful and careful way to ‘move on’ ”;

·“… I have noted a pattern emerging with Jeff’s [the Applicant] depression.     Well before his father died in November 2014, I could tell from his voice during a telephone call when he was having a bad day with his depression.   The bad days would continue for approximately 4 – 5 days before his depression would diminish for approximately one week before slowly returning”;

·“… I have assisted Jeff [the Applicant]... with some domestic chores, for example, getting clothes off the washing line and caring for his poultry and cattle.  I have not performed any other domestic chores whilst visiting”;

·”I have always noticed Jeff’s [the Applicant] home to be reasonably clean and tidy.  I have not seen any evidence of dysfunction in terms of the home’s cleanliness… I have not seen any evidence during my visits to suggest that Jeff [the Applicant] is neglecting his hygiene or nutrition”.

Allocation of an impairment rating to the mental health condition
Initial comments

45.In terms of preliminary requirements, Table 5 - Mental Health Function stipulates six identical descriptors in each of the “no”, “mild”, “moderate”, “severe” and “extreme” levels of functional impairment. Each of the impairment categories requires the Applicant to establish difficulties with “most” of the descriptors. I accept the Respondent’s position that according to social security law, for the purpose of applying the Tables, “most” means more than 50%.[31] So in this case, a minimum of four out of the six descriptors or criteria must be met by the Applicant to fall within a given category of functional impact.

[31] See The Guide To Social Security Law at 3.6.3.05.

46.I concur with the approach of my colleague at first tier review to the effect that when applying Table 5, regard must be had to the Applicant’s underlying mental health functioning and, in addition, to bear in mind  the significant exacerbations or stressors which serve to either re-activate or increase the severity of the Applicant’s symptoms of depression.  

47.It is, to my mind, a recurring and sustainable theme of the totality of the medical and other evidence as it relates to this Applicant that following episodes of exacerbation in his condition, he seemed to recover his level of functionality, either due to treatment or the support of friends and family or due to his own efforts.  For example:

a)    the psychologist, Ms Sandra Beaumont,  who treated the Applicant in 2011 and 2012  and who resumed seeing him in or about 2015,  noted in her evidence to the AAT1 review that the Applicant – at the time he stopped seeing her in 2012 – “… he was clearly significantly improved …”;[32]

b)    In her witness statement of 28 June 2016, Ms Minc reported that “In April 2016 Jeffrey [the Applicant]  reported that he had ‘cloudy days’ when his head is in a fog which occurs for 3 to 4 days each week”; [33]

c)    Ms Bonnie Tasker in her witness statement dated 26 June 2016 says the Applicant is displaying symptoms of depression, he does positively respond and often just “needs a rev” and to otherwise be told to “move on”.  She added that “The bad days would continue for approximately 4 – 5 days before his depression would diminish…”.[34]

[32] Exhibit 3, T Documents: T2, p 12 at para 22.

[33] Exhibit 7 or 5(a), at [10].

[34] Exhibit 7 or 5(b) at [5] & [6].

48.I therefore agree with three contentions made by the Respondent:

a)    the Tribunal should ascribe to the Applicant an impairment rating that accounts for the Applicant’s functional improvement in response to treatment(s) administered for his mental health condition; and

b)    the medical opinion of Dr Johns, to the effect that the Applicant’s mental health condition should be rated as extreme is to be viewed as inconsistent with the balance of the medical evidence. Dr Johns had not seen the Applicant for a period of 15-20 years until his latest review in 2015, which was due to the Applicant’s relapse into serious symptoms of depression at that time. One therefore has difficulty in being convinced by the opinion of Dr Johns that this Applicant’s mental health symptoms met five out of the six applicable criteria thus placing him in the category of extreme impairment of his mental health function;

c)    in considering this matter at the time of cancellation, evidence that had a temporal and first-hand connection with the Applicant’s experiential symptomatology over a sustained period is to be preferred.[35]

[35] See Exhibit 2, Respondent’s SFIC at [64] & [65].

1. This approach for the rating of episodic and fluctuating conditions is endorsed by the Determination at subparagraph 11(4), as follows:

   “(4) When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impacts of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.”[36]

   [36] See Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s 11(4).

   Application of relevant descriptors

   50.Having regard to (a) the findings of the most recent JCA report (7 July 2015), (b) the findings of the ARO (22 July 2015), (c) the balance of the totality of the medical evidence; and (d) where there is a requirement that “most”[37] of the descriptors in a single category must be met; I agree with the Respondent’s contention that this Applicant’s mental health symptoms can only be rated 5 impairment points pursuant to Table 5 and no higher. In particular (and with regard to the itemised descriptors in Table 5) I find there to be a mild functional impact on his activities involving mental health function.

   [37] “most” being the majority/ more than half of the descriptors.

   51.I note that in Table 5 – Mental Health Function, the same six descriptors are repeated verbatim in each category of functional impact. The differentiating factor is the level of functional impact. Thus the examples given at the foot of each descriptor varies in the level of severity. I will address each of the six descriptors and provide my analysis of the relevant level of functional impact on the Applicant.

   52.(a) Self-care and independent living: The Applicant currently lives alone, since the passing of his father around the end of 2014. He is independent and otherwise able to manage his self-care needs albeit with some measure of support from his daughter and friends, such as Bonnie Tasker. His evidence has, throughout this matter, been that he has historically provided for the care of one or both of his elderly parents.  I note he told the AAT1 review that he is reliant on the support of family and friends for his continued independence. This evidence is at odds with the findings of the JCA in July 2015 (the most recent JCA report). Additionally, Ms Tasker observed that he maintains a clean and orderly household and that he otherwise seems to look after himself in terms of hygiene and nutrition.  I find that in circumstances where the Applicant lives independently and manages his self-care needs, the highest descriptor that can be assigned is mild. In circumstances where the Applicant is offered occasional assistance by way of visits from friends and family and the provision of a meal, I find that his level of functional impairment to be mild.

   53.(b) Social /recreational activities and travel:  Although not actively involved in attending social or recreational activities, the Applicant’s evidence is that he nevertheless does engage in minimal and social recreational activities and that he does contribute to a poultry show twice a year. Since November 2014 the Applicant has undertaken two overseas trips, to New Zealand and Thailand respectively. If one has regard to the period of approximately five years before the date of cancellation, it is clear the Applicant has travelled overseas in August 2009, April 2010, April 2011, August 2011, June 2012, November/December 2012, February 2014 and May/June 2014. Mr Cranitch, in his written submissions of 23 October 2015, sought to ameliorate the Applicant’s travel activities relative to this descriptor by contending that his trip to New Zealand in January 2015 was made with his friend, Dale, and that his trip to Thailand was made with an Anglican priest and a registered nurse. I have difficulty in accepting that submission in circumstances where the Applicant’s apparent willingness to travel overseas is clearly inconsistent with a person who is moderately or severely functionally impaired by symptoms of depression.  As noted by the Respondent, such travel necessarily involves being in contact with others as well as meeting the usual and necessary logistical and other requirements relating to such travel.  Further to that, there is no evidence before me that the Applicant’s symptoms have worsened consequent upon such travel. I therefore find his level of functional impairment on the basis of this descriptor to be mild.

   54.(c) Interpersonal relationships: The Applicant’s evidence is that he has established multiple positive relationships both within and outside his family environment during his adulthood. Although there is no positive evidence in this regard, those relationships may become strained with occasional tension or arguments over the passage of time.  However, for him to fall within the moderate functional impact descriptor, he would have to establish that he has difficulty making and keeping friends or sustaining relationships. This is simply not the evidence. He seems to value and respect his friendships and to otherwise retain those friendships.  At a non-family level, he has travelled overseas with Dale, plus an Anglican priest and a registered nurse. Those people would not have travelled with him if he were unduly, abrasive or unbearable. Similarly, at a closer or family level, his longstanding relationship with Ms Tasker, his parents, his children and their respective partners, is notable and, in my view, speaks positively about his capacity to make and retain friendships.  It is also a notable feature of the Applicant’s personality that he remains on good terms with his former partner of approximately 8 years.  Again, it is unlikely the former partner would still be on decent terms with him if he had a poor capacity to either create and/or maintain interpersonal relationships. I therefore find his level of functional impairment on the basis of this descriptor to be mild.

55.(d) Concentration and task completion:  There is a consistency in the medical evidence ranging from 1996 to virtually the date of cancellation that this Applicant has poor concentration levels. However, there is no medical evidence about the level of functional impact that this has. The evidence on behalf of the Applicant is that he experiences moderate difficulties with concentration and task completion in that he finds it extremely difficult to read a book with his concentration span being no more than thirty minutes.[38] The JCA reporters observed there was a mild to moderate difficulty with concentration and task completion, noting that the Applicant had difficulty driving due to reduced concentration.[39] The Applicant told the ARO that he had difficulties with concentration but stated he watches TV for half an hour at a time.[40] I consider that his concentration probably becomes more impaired during exacerbated episodes of his depression. I find the Applicant’s level of functional impairment on the basis of this descriptor to be moderate.  

[38] See Exhibit 1, Applicant’s SFIC at [39].

[39] See Exhibit 3, T 17, p 145.

[40] Ibid at T32, p 207.

56.(e) Behaviour, planning and decision making: The mild functional impact descriptor specifies the requirement for evidence of an Applicant’s unusual behaviours that may disturb others or otherwise attract negative attention. There must also be evidence that the symptoms giving rise to those behaviours may result in obsessive or demanding conduct inappropriate to a given situation in which the Applicant may find himself.  I think the medical evidence, viewed in its totality, points to a mild functional impact of his mental health condition on his overall behaviour, planning and decision making. Both his medical and lay witnesses refer to periods of low mood and demotivation, “bad days/good days”, and occasional lapses into negative reactions to stressful situations. As against that, the Applicant, to his credit, operates his own commercial cleaning business and, presumably, has primary responsibility for meeting its attendant requirements, including the inevitable difficulties that arise with problematic clients and administrative challenges inherent in any small business. He has adopted a stoic approach to operating his business through his own difficulties in coping with stressful situations and has otherwise survived, in a business sense, despite his occasional behavioural and/or mood difficulties.  I therefore find his level of functional impairment on the basis of this descriptor to be mild.

57.(f) Work/training capacity:  As mentioned in the immediately preceding paragraph, the Applicant operates his own commercial cleaning business.  For him to demonstrate that his mental health symptoms moderately impact on his functional capacity regarding his mental health there would need to be evidence of him often having interpersonal conflicts at work or other episodes requiring intervention by others to resolve those conflicts. That evidence is not before the Tribunal and, as previously observed, the Applicant seems to be doing a competent job of owning and operating his commercial cleaning business with minimal, if any, interpersonal conflicts in the business that require external intervention for their resolution.  Indeed, the Applicant is, to my mind, doing such a good job of running his commercial cleaning business that he seems to be a person who can cope with the normal demands of that business which is consistent with his education, experience and training. On this basis, he would fall within the “no functional impact” portion of this Table 5. However, I note that he receives some administrative assistance in the business from his daughter, daughter-in-law and previously, his partner. I accept that on his “bad days” this may extend to the occasional “hands on” intervention by others but I cannot reasonably find that those interventions we required often. On balance, I find that his level of functional impairment on the basis of this descriptor to be mild.

58.To summarise, the Applicant meets five of the six descriptors for a mild functional impairment under Table 5 but he does not meet the threshold for a moderate functional impairment.  Accordingly, the correct rating under Table 5 is 5 points.  

Summary

59.Based upon the totality of the evidence, I consider the Applicant’s following conditions attract these impairment points:

(i)Spinal condition:  Table 4 (Spinal Function)  10 points

(ii)Depression:  Table 5 (Mental Health Function)   5 points

Total rating = 15 points

60.As the Applicant does not reach 20 points or more under the Impairment Tables, he does not satisfy the requirement in s 94(1)(b) of the Act. He therefore was not qualified for DSP at the date of cancellation.

Continuing Inability to Work?

61.Given that the Applicant did not have 20 points or more at the date of cancellation it is not necessary to consider this question.

CONCLUSION

1. Mr O’Neill no longer qualified for DSP because his impairment(s) only attracted 15 impairment points at the date of cancellation. Therefore, the Department’s decision to cancel his DSP on 7 July 2015 was correct.

DECISION

1. Accordingly, the decision under review is affirmed.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

......................[sgd]..........................

Associate

Dated: 14 June 2017

Dates of hearing:	22 February 2017
Advocate for the Applicant:	A. Minc
Solicitors for the Respondent:	M. Underhill, DHS - FOI and Litigation